Published 23 January 2017
Chalker v Murrays Australia Pty Ltd  NSWCATAD 282
A prospective employer has failed to prevent a prospective employee from advancing a discrimination complaint after the Tribunal found the case was reasonably arguable and the applicant had a reasonable explanation for the delay as he suffered from borderline personality disorder and did not have a sophisticated understanding of the process as he was self-represented.
In the recent case of Chalker v Murrays Australia Pty Ltd  NSWCATAD 282, the New South Wales Civil and Administrative Tribunal (the Tribunal) found Mr Chalker, who had made a complaint against Murrays Australia on the grounds of direct discrimination, had a reasonable explanation for his delay in advancing the complaint as he suffered from borderline personality disorder and was self-represented.
Mr Chalker applied for the position of coach driver with Murrays Australia and was required to attend a medical assessment and complete a “driver questionnaire form”. He believed he was not offered a position because they perceived him to have a disability.
Murrays Australia sought to have the complaint dismissed based on Mr Chalker’s delay in progressing it, or, in the alternative, because the complaint lacked substance.
On 3 May 2016, Mr Chalker’s complaint was referred to the the Tribunal and a case conference was held on 29 June 2016. After Murrays Australia declined mediation, Mr Chalker was instructed to provide basic details of the legal basis of his complaint and any witness statements or evidence of loss or damage.
On 10 August 2016, Mr Chalker wrote to the Tribunal alleging that Murrays Australia had discriminated against him on the ground of disability and that he was seeking compensation. He also stated he was applying for a summons to enable the examining doctor to give evidence.
On 16 August 2016, Mr Chalker wrote to the Tribunal asking for an extension of time to comply with the directions. He provided a short report from a psychiatrist to support his application and the Tribunal gave him until 20 September 2016.
On 20 September 2016, Mr Chalker repeated his claim of direct disability discrimination and provided an email sent by him to the medical practitioner appointed by Murrays Australia enclosing a medical report from his own specialist and an email acknowledging receipt of his email.
On 28 September 2016, Murrays Australia filed an application for summary dismissal.
The Tribunal found Mr Chalker had a reasonable explanation for the delay. Firstly, he was self-represented and “did not have a sophisticated understanding of how to characterise his case or what evidence he needed”. Secondly, Mr Chalker had a borderline personality disorder and the stress of the proceedings contributed to the delay.
The Tribunal noted that Mr Chalker was not required to establish a prima facie case but rather prove he had a reasonably arguable case. The Tribunal found the ‘inherent requirements’ exception argued by Murrays Australia did not justify dismissing the complaint at this stage.
As such, the application for dismissal was dismissed on both grounds.
This case demonstrates that a self-represented employee may have a reasonable explanation for a delay if they attempted to comply with directions but did not completely understand what process they needed to follow.
Further, mental illnesses and disorders may be taken into account when considering if there was a reasonable explanation.
It is also important to note that for a case to be “lacking in substance” so as to dismiss it, neither party has to prove their case, rather, there must be a “high degree of certainty that the complaint will not succeed”.